1. This appeal under section 100 of the Code of Civil Procedure is by the original plaintiffs whose suit was dismissed by the trial court and confirmed by the first appellate court on the ground that the court has no jurisdiction to try and dispose of the suit filed by the plaintiffs as also the suit is not maintainable having been filed without prior permission of the Charity Commissioner.
2. The case of the plaintiff in the suit is that the plaintiffs are trustees of the registered trust known as Haribhai Naranbhai Trust. Under the provisions of the Bombay Public Trusts Act [herein after referred to as “the Act” for brevity], the property of the trust vest in the trustees and the trustees are entitled to deal with the trust property. It is the further case of the plaintiffs that the defendants are trying to deal with the trust property by saying that they have become trustees of the trust property by virtue of the decision taken in the meeting dated 14.3.93. Defendants have applied before the Assistant Charity Commissioner to enter their names as trustees but the Assistant Charity Commissioner has not decided such issue and till such decision is taken by the Charity Commissioner, trust property could not be said to have vested with the defendants and they can also not be considered as trustees. It is the further case of the plaintiffs that the defendants want to sell away the trust property and create third party rights in the trust property though the defendants have no right, title or interest in the property. The plaintiffs have therefore filed the suit for the relief to declare that the defendants have no right, title or authority to deal with the trust property being Final Plot No.20,47,84 and 93 in TP Scheme No. 12 (Adajan) in any manner and also for declaring that the defendants have no right or authority to obstruct or interfere with the administration of trust property in possession of the plaintiffs. The plaintiffs have also prayed for permanent injunction restraining the defendants from dealing with the trust property and/or from making any agreement or creating any third party interest or from permitting anybody to enter upon the trust property or cutting of the grass from the trust property and further restraining the defendants from interfering with the plaintiffs’ possession over the trust property.
3. The defendants filed written statement at Exh. 12 and stated that the Court has no jurisdiction to try the suit. It is also stated that the plaintiffs had already resigned as trustee on 11.2.1993. Said resignation was accepted in the meeting of the executive committee on 21.2.1993 and new trustees were elected in the meeting dated 14.3.93 and the defendants have applied to the Assistant Charity Commissioner to enroll the names of the new trustees. That the suit is not maintainable as the permission of the Charity Commissioner was not taken before filing the suit.
4. After filing of the written statement, the defendants filed application Exh. 17 for raising and deciding preliminary issue to the effect that the Court has no jurisdiction to decide the suit of the plaintiff. The plaintiffs had filed reply to the said application at Exh. 25 and the learned trial Judge after hearing both the parties, came to the conclusion that from the pleadings of the plaint, the suit of the plaintiffs is basically for management of the trust property and therefore, the civil court has no jurisdiction to try and dispose of the suit. The Court has further held that the suit filed without prior permission of the Charity Commissioner is not maintainable. On the basis of this conclusion, the learned trial Judge dismissed the suit vide judgment and decree dated 7.10.1995.
5. The appellant unsuccessfully carried the matter before the first appellate court by filing Regular Civil Appeal NO.56 of 1995. The learned appellate Judge on the pleadings in the plaint, observed that the plaint itself reveals that the defendants claimed that they have become trustees of the trust as per the decision taken in the meeting dated 14.3.1993 and the defendants want to deal with the trust property by believing themselves to be the trustees of the trust. The learned appellate Judge further observed that though from the declaration sought in the plaint, it might appear that the declaration is sought in respect of the trust property against trespassers but considering the allegations made in the plaint, the civil court will be required to frame the issue as to whether the defendants are trustees or not. The Civil Court is not empowered to decide such issue because such issue is to be decided by the Assistant Charity Commissioner. The learned appellate Judge further observed that the defendants are also claiming to be the trustees by virtue of the decision taken in the meeting and the issue as regards change report is pending before the Charity Commissioner and the decision of the Charity Commissioner will be final for the status of the parties. In such fact situation, the defendants cannot be said to be trespassers and, therefore, the civil court cannot decide the suit as the jurisdiction of the civil court is completely excluded to decide such issues. The learned appellate Judge thus concurred with the finding and ultimate conclusion recorded by the learned trial Judge and found no error committed by the learned trial Judge in dismissing the suit filed by the plaintiffs. Accordingly by judgment and decree dated 24th September, 1996, learned appellate Judge dismissed the first appeal of the plaintiff which is under challenge in this appeal.
6. This appeal was admitted by order dated 30.4.1998 on the following questions of law:
“[1] Whether the Civil Court had no jurisdiction to entertain the suit ?
[2] Whether the suit as framed is not maintainable without prior permission of the Charity Commissioner as required under section 50 of the Bombay Public Trust Act ?
[3] Whether in view of section 41-E of Bombay Public Trust Act applicable for State of Gujarat only Section 41A of the said Act intended for State of Maharashtra could be pressed in service in the facts and circumstances of the case ?”
7. I have heard the learned advocate Shri Dhirendra Mehta for the appellants. Nobody has appeared for the respondents though the respondents have been duly served.
8. Learned Advocate Shri Mehta submitted that when the suit was filed, the defendants were not at all the trustees and the Assistant Charity Commissioner was yet to decide the change report. He further submitted that the suit was filed to protect the trust properties from being dealt with and wasted by the defendants who claimed themselves to be the trustees of the trust. Shri Mehta submitted that from the pleadings of the parties, no issue as regards trusteeship of the parties was required to be decided nor even the issue concerning management of the trust property was required to be decided. The plaintiffs as trustees of the trust had just sought declaration to save the trust property from being wasted at the hands of the defendants who by trespassing on the trust property wanted to deal with the trust property with other strangers. The plaintiffs being the trustees of the registered public trust were entitled to file such a suit to protect the trust property even without prior permission of the Charity Commissioner because as per the settled principles of law, trust property would vest in the trustees and the trustees can very well approach the competent civil court for saving the trust property from being wasted in the hands of the trespassers. Shri Mehta submitted that when the decision in the meeting of the executive committee was not finalized, the defendants could not be said to be the trustees of the trust and they have got no right to deal with the trust property and in such fact situation, the civil court had jurisdiction to decide the suit for grant of declaration sought by the plaintiffs. He, thus, submitted that the courts below have on misinterpretation of the provisions of section 80 of the Act and on wrong construction of the pleadings of the parties, committed grave error in dismissing the suit of the plaintiff. Shri Mehta has also submitted that since there is no provision like section 41-E brought in force by way of amendment for the State of Maharashtra in the Bombay Public Trusts Act, the jurisdiction of the Civil Court is not ousted. He, thus submitted that unless there is amendment like the provisions of Section 41-E in the case of Maharashtra State, Civil Courts in the State of Gujarat will continue to have jurisdiction to decide the suit filed by the trustees for the purpose of protection of the trust properties. Shri Mehta thus urged to allow this appeal on the above raised substantial questions of law by holding that the civil court has jurisdiction to entertain and decide the suit of the plaintiffs.
9. I have perused the copy of the plaint with written statement and Exh. 17 filed by the defendants as well as the Records and Proceedings of the Courts below. I find that though the suit is for seeking declaration that the defendants have got no right or authority to deal with the trust property and for permanent injunction restraining the defendants from dealing with the trust property, but the base of the suit is that the defendants have got no right to deal with the trust property and they are not the trustees of the trust. The plaintiffs have alleged in the plaint that they are the trustees of the trust property and only they are entitled to deal with the trust property and the defendants’ name as trustees had still not been approved in the change report by the Charity Commissioner after the decision was taken in the executive meeting of the trustees. As against this, defendants came forward with the case that the change report was approved by the Charity Commissioner and the appeal was filed by the plaintiff which was pending then. From the pleadings, it therefore appears that essentially the question centers around the rival claim of the parties to deal with the trust property as a trustees of the trust, therefore, even if the civil court is called upon to decide whether the defendants are entitled to deal with the trust property or not, the civil court will be required to first decide whether the defendants are the trustees of the trust or not or whether the plaintiffs are the only persons still continued to be the trustees of the trust.
10. The Courts below on interpretation of the provisions of section 80 of the Act in the context of the pleadings of the parties, have come to the conclusion, in my view rightly, that the issues which may arise from the pleadings will fall for consideration only by the competent authority under the Act and the Civil Court by virtue of the clear bar of section 80 of the Act will not be entitled to decide such issues. At this stage, section 80 of the Act is required to be reproduced as under:
“S.80. Bar of Jurisdiction:
Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive.”
11. Sec. 80 of the Act clearly provides that no civil court shall have jurisdiction to decide and deal with any question which is by or under this Act to be decided and dealt with by any officer or authority under this Act and in respect of which decision or order of such officer or authority has been made final and conclusive except otherwise provided in the Act. As discussed above, for deciding to grant the prayer for declaration in respect of the suit property, question about the trusteeship of the parties will be required to be decided, therefore, though not directly but in an indirect way, the plaintiffs could be said to have called upon the Civil Court to decide as to who is the trustee of the trust who can deal with the property of the trust.
12. It is pertinent to note that the Act provides for various remedies to deal with different questions in respect of trust and its properties. Where any change occurs in any of the entries recorded in the Register in respect of the trust, there is provision in section 22 to decide such issue. When any direction is required to be sought for proper administration of the trust, charity commissioner can give direction to ensure that the trust is properly administered and also can give direction to the trustees or any person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of under section 41-A of the Act. Sub section (2) thereof provides that it shall be the duty of every trustee or of such person to comply with the directions issued under sub section (1) of section 41-A of the Act. In my view, the provisions of section 41-A is complete remedy for type and nature of the grievances raised in the suit. There are also provisions like section 50 for seeking recovery of the trust property if it is sold or dealt with unauthorizedly by any person like section 51 where the suit could be instituted with the permission of the Charity Commissioner for the trust property. From all these provisions, it appears that the legislature clearly intended to exclude the jurisdiction of the Civil Court by enacting section 80 in the Act to decide and deal with the question which is required to be decided and dealt with by the authority under the Act. As discussed above, the question raised in the suit can very well be decided by the competent authority under the Act.
13. At this stage, reference to the decision of the Hon’ble Supreme Court in the case of Church of North India versus Lavajibhai Ratanjibhai and others, reported in (2005) 10 SCC 760 is required to be made. Hon’ble Supreme Court has held and observed as under in para 82, 83 and 98:
“82. The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete Code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question.
83. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever.
98. The principle enunciated in each of the decision laid down relate to the fact-situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred.”
14. This Court in the case of Sevantilal Jaskaranbhai Ajbani & Another versus Shree RupvijayjiMaharaj Dellano Upashraya Trust & Another reported in [2009] 20 GHJ (431) has also dealt with similar question raised and this Court in the said decision has held that whereever any dispute is to be resolved and decided by the officers under the Bombay Public Trusts Act, Civil Court has no jurisdiction to entertain the suit with respect to such issue and relief. This Court has further observed that the averments in the plaint, nature of controversy in the suit, relief sought in the suit and the fact about pendency of change report being pending for adjudication can be decisive factors to decide whether the jurisdiction of civil court is barred under the provisions of section 80 of the Act.
15. As stated above, in the case on hand, the plaintiff wants declaration that the property is trust property, that the defendants are not trustees and are not entitled to deal with the trust property and that there was no decision on the change report and names of the defendants were not enrolled as trustees of the trust. Such being the fact situation of the present case, in my view, as per the decision of Hon’ble the Supreme Court in the case of Church of North India (supra) and as per the decision in the case of Sevantilal (supra), the courts below have not committed any error in holding that the civil court has no jurisdiction. So far as the last substantial question of law is concerned, it is required to be noted that section 41-E was special provision made for the State of Maharashtra whereunder the Charity Commissioner is given special powers to grant injunction and to make such orders for the purpose of staying and preventing wasting, damaging, alienation, sale, removal or disposition of such property. Said provisions also provide for the consequences of disobeying the injunction order. Simply because no provision of issuing injunction order is made for the State of Gujarat, is no ground to hold that the Civil Court has jurisdiction to decide the suit of the nature filed by the plaintiffs. When it is found that the questions raised in the suit are to be decided by the competent authority under the Act, the jurisdiction of the civil court will stand excluded. I do not find that the absence of the provisions like 41-E made for the State of Maharashtra would make any difference and absence of such provision would never confer jurisdiction on civil courts in the State of Gujarat to decide the suit of the nature filed by the plaintiff wherein the questions are required to be decided by the officers under the Act.
16. For the above said reasons, substantial questions of law are answered accordingly and the appeal is required to be dismissed.
17. Accordingly, this appeal is dismissed.
anvyas Sd/-
(C.L.SONI, J.)